Lewis v. Gsell

• Decision Date: 24 March 1944
• Docket Number: 37.
• Citation: 36 A.2d 702,183 Md. 123
• Parties: LEWIS v. GSELL, Sheriff, et al.
• Court: Maryland Court of Appeals

36 A.2d 702

183 Md. 123

LEWIS v. GSELL, Sheriff, et al.

No. 37.

Court of Appeals of Maryland

March 24, 1944

Appeal from Circuit Court, Kent County; Stephen R. Collins, Chief Judge, and Wm. R. Horney and J. Owen Knotts, judges.

Suit by Joseph W. Lewis against W. Henry Gsell, Sheriff of Kent County, for a decree declaring rights of plaintiff under his off sale beer, wine, and liquor license and to enjoin Sheriff from carrying out threat to arrest plaintiff if plaintiff did not close his liquor store. The County Commissioners intervened as parties defendant. From a decree sustaining defendants' demurrer, dismissing the bill, and dissolving the preliminary injunction, plaintiff appeals.

Decree reversed.

Richard Carvell, of Chestertown (S. Scott Beck, of Chestertown, on the brief), for appellant.

Herbert E. Perkins and Preston P. Heck, both of Chestertown (Harrison W. Vickers, of Chestertown, on the brief), for appellees.

Before SLOAN, C.J., and DELAPLAINE, MARBURY, MELVIN, and BAILEY, JJ.

PER CURIAM.

For the reasons which will hereafter be stated at length, the decree in this case will be reversed.

The Court is of the opinion that the Act of 1943, Chapter 816 establishing a liquor control board for Kent County, while effective in itself for the sale of liquor by county dispensaries for that purpose, failed to repeal so much of the Act of 1933, Ex.Sess., Chapter 2, so far as the same applied to Kent County, so that Kent County now has two systems for the sale of intoxicating liquors instead of one.

Decree reversed with costs.

SLOAN Chief Judge.

The plaintiff, Joseph W. Lewis, is the holder of an 'off sale' beer, wine, and liquor license at Chestertown in Kent County issued to him April 29, 1943 effective for the year beginning May 1, 1943. The license was issued to him under the provisions of Article 2B of the Code Act of 1933, Extra Session, ch. 2. The General Assembly by Act of 1943, ch. 816, passed an Act constituting the County Commissioners the 'Liquor Control Board for Kent County,' with power and authority to establish stores to be known as 'Liquor Dispensaries' in Kent County. The plaintiff had been notified by Henry Gsell, Sheriff of Kent County, on December 31, 1943, to close his liquor store otherwise, he would close it and arrest him for unlawfully selling liquor, on the assumption that the Act of 1943, ch. 816, had repealed the statute whereby the plaintiff had obtained his license.

The plaintiff immediately filed a bill to enjoin the sheriff and prayed a decree declaring the rights of the plaintiff under his license. The County Commissioners on petition were allowed to intervene and were made parties defendant. The defendants all answered and demurred, and on hearing the demurrer was sustained, the bill dismissed, and the preliminary injunction dissolved. The next day the plaintiff appealed. The majority of this Court being of the opinion that the decree appealed from should be reversed, on account of the urgency of a prompt decision, passed a per curiam order so holding, the reasons for such action by this Court now being stated.

Until the Act of 1943, ch. 816, the only provision for the sale of beer, wine, and liquor in Kent County was the Act of 1933, Extra Session, ch. 2, under which (Code, Art. 2B, sec. 6) 'in Cecil and Kent Counties no such license [off sale] shall be issued except to retail druggists and grocers who have conducted such business at least one year prior to application for such license.' By section 4, subd. D of Article 2B, sub-title Beer License, Class D (on sale), it was provided that such a license 'shall authorize the holder thereof to keep for sale and to sell beer at retail, at the place therein described, for consumption on the premises or elsewhere, but no such license shall be issued for any drugstore.' Baltimore City and twelve counties were excepted from the provisions of this section. Kent was not excepted; therefore, it was included. The two classes of licenses mentioned are the only provisions for the sale of alcoholic beverages in Kent County; that County was excepted from any other class of license. Some of the counties had liquor boards, some dispensaries, and some were omitted entirely and had their own liquor laws.

This was the situation in Kent County until January 1, 1944, when the Act of 1943, ch. 816, went into effect. By that Act the County Commissioners of Kent County were constituted the 'Liquor Control Board for Kent County' with 'full power and authority to establish, operate and maintain, in Chestertown, Rock Hall, Betterton and Galena, and at such other places in said Kent County as said Liquor Control Board deems desirable and proper, stores to be known as Kent County Liquor Dispensaries, for the sale of any sparkling or fortified wine and any other alcoholic beverage containing more than fourteen per cent of alcohol by volume in sealed packages * * *, which packages or containers shall not be opened nor their contents consumed on the premises where sold.' This is the only provision (77-A(1) for the alcoholic content of beverages to be sold in dispensaries, and fourteen per cent is the minimum alcoholic content of 'sparkling or fortified wine or any other alcoholic beverage,' which the Control Board is authorized by the Act to buy and sell.

Section 2 of the Act of 1943, ch. 816, was the blanket repealer, which repealed all Public General and Public Local Laws inconsistent with this law to the extent of such inconsistency.

The defendants' contention is that the provisions of the Act of 1933 Extra Session, ch. 2, with respect to alcoholic beverages in Kent County are inconsistent with the Act of 1943, ch. 816, and, therefore, the licenses of those who held licenses to sell alcoholic beverages in Kent County, were revoked and cancelled on January 1, 1944, the effective date of the Act of 1943. If this contention is correct, then there is no licensed dealer for the sale of beer, wines, or liquors, and there has been no appropriation of private property without due process, as the Act of 1933, Extra Session, ch. 2, Code, Art. 2B, sec. 28, expressly says there is no property right in any license granted under that Act and that makes it a condition of the license.

The decision of the Circuit Court and the contention of the defendants is that the Act of 1943...